JUDGMENT Anshuman Singh, J.
1. These two revisions under Section 11(1) of the U.P. Sales Tax Act, 1948 (hereinafter referred to "the Act"), are directed against the judgment and order dated 29th January, 1987, passed by the Sales Tax Tribunal, Ghaziabad, allowing the appeal of the assessee in part relating to the assessment year, 1985-86. The assessee is a Corporation of the State Government known as U.P. Avas Evam Vikas Parishad which has been established under the provisions of the U.P. Avas Evam Vikas Parishad Adhiniyam. It is controlled and supervised by the State Government. It was carrying on the work of the construction of residential houses and is also acquiring, holding and disposing of the immovable property. That the assessee with a view to discharge its duties regarding acquisition of the land and construction of the buildings, entered into contracts with various contractors who have constructed the buildings/houses in accordance with the specifications and the directions of the assessee under the strict supervision and control of the assessee. Under the terms of the contract entered into between the assessee and the contractors, it has been provided that cement and steel shall be issued by the assessee to the contractors. That from the perusal of the terms of the contract, it appears that the materials supplied by the assessee always remain the property of the assessee and the contractor has merely the custody of those materials which are to be used into the works which he is required to execute. Materials are also supplied at the fixed rates to the contractors for being exclusively used in the works on the terms and conditions that any misuse of the said materials by the contractors will entail penal consequences. According to the assessee it was not carrying on any business whatsoever of buying or selling of any goods. The Sales Tax Officer, has passed the provisional assessment order on 3rd June, 1983 (?) for the month of April, 1985 and has imposed a sum of Rs. 19,000 as sales tax and also on 17th July, 1985, a provisional assessment order was passed and has imposed of a sum of Rs. 24,000 as sales tax. The assessee feeling aggrieved against the order of the Sales Tax Officer filed first appeals before the Assistant Commissioner (Judicial), who partly allowed the appeal for the month of April, 1985 and reduced the taxable turnover of the assessee but dismissed the appeal for the month of May, 1985. Feeling aggrieved against the orders of the first appellate court, the assessee preferred second appeals before the Sales Tax Tribunal. The Sales Tax Tribunal, Ghaziabad, by its order dated 29th January, 1987, allowed the appeals partly.
2. The contention of the learned counsel for the assessee is that he was not dealer as defined under the U.P. Sales Tax Act and the supplies made by him could not be termed as sale and were not exigible to sales tax.
3. I have heard Sri V.M. Sahai, learned counsel appearing on behalf of the Revenue and Sri Bharatji Agarwal, learned counsel appearing on behalf of the assessee.
4. The sole question which requires consideration in these two revisions is as to whether the cement and steel supplied by the assessee to its various contractors could be termed as sale and was liable to tax or it was a works contract. To decide the said question it is pertinent to refer to certain terms of the contracts entered into between the assessee and the various contractors. In this connection reference may be made to paragraph Nos. 5, 8, 10 and 12 of the agreements which read as under :
"5. Materials issued by the department, in case of misuse, excess use or damage by the contractor after taking delivery from stores or theft from the site will be charged at double the current stock issue rate.
5. Materials drawn in excess than the bona fide requirement or work shall be recovered at double the current stock issue rate.
6. The contractor shall construct suitable godown at site of work for having the materials safe against damage by sun, rain, dampness, fire, theft, etc. He will also employ necessary watch and ward establishment for the purpose. A proper daily account of cement shall be maintained by the contractor as per direction of the Engineer-in-charge and the store and account shall be open to inspection and checking on demand. Cement will remain in double lock of parishad and keys will remain in possession of Junior Engineer-in-charge of work and other lock will be of contractor.
7. Steel bar shall be issued in length or in coils as available in the stores. No claim on this account shall be entertained. The steel will be issued from the stores by weight but the payment shall be done only by measurement and calculated on the basis of standard weight. No claim will be entertained for variation in rolling within specified tolerance. Materials issued by the department if damaged by the contractor after taking delivery from the store will be charged at double the stock rates."
8. The learned counsel for the assessee has vehemently urged that the assessee was carrying on the works of the constructions of residential houses and the material supplied by the assessee to the contractors could not be termed as sale and as such the view taken by the authorities is wholly illegal and deserves to be quashed. In support of this contention he placed reliance on a decision of this Court rendered by me in Hindustan Housing Factory \. Commissioner of Sales Tax [1989] 75 STC 233 ; 1989 UPTC 468 and urged that the facts of the present case and that of Hindustan Housing Factory v. Commissioner of Sales Tax [1989] 75 STC 233 (All.) ; 1989 UPTC 468, are identical and the Tribunal has not properly applied its mind to the terms and conditions of the contract. He further contended that for determining whether it is works contract or sale, the contract has to be read as a whole and some of the terms cannot be relied upon in isolation for coming to the conclusion that the assessee is a dealer and the supplies made by him were sales and exigible to sales tax. The learned counsel appearing for the Revenue has vehemently conceded that when the Tribunal decided the case the decision in Hindustan Housing Factory [1989] 75 STC 233 (All.) ; 1989 UPTC 468, was not available before the Tribunal and it is expedient that the Tribunal should be directed to decide the case afresh, in view of the law laid down by this Court in case of Hindustan Housing Factory v. Commissioner of Sales Tax [1989] 75 STC 233 ; 1989 UPTC 468.
9. In the result both the revisions succeed and are allowed and the order passed by the Tribunal is set aside. The Tribunal is directed to decide the case afresh in the light of the observations made above and also in view of the law laid down by this Court in Hindustan Housing Factory v. Commissioner of Sales Tax [1989] 75 STC 233 ; 1989 UPTC 468. Parties shall bear their own costs.
10. Let a copy of this order be sent to the Tribunal concerned as contemplated under Section 11(8) of the Act.